The decision has changed the landscape. While more than half of all the states allow or are on the brink of allowing same-sex marriage, the legal fight to bring in the remainder of the country now returns to state, district, and federal appeals courts.
Supreme Court justices "really sent an unmistakable signal that there is no reason for denying the freedom to marry and they're not gonna stand in the way," said Evan Wolfson, president of Freedom to Marry, a gay-rights advocacy group. That signal is directed in large part toward the lower courts: with the decision, justices are saying that lower courts don't have to wait for the the Supreme Court to weigh in before moving forward with gay marriage.
And advocates are looking to federal circuit courts to take the hint. Lower courts that were delaying action until the Supreme Court took a side now have their answer. "There's no longer any reason for circuits to say, 'Oh, we're following the Supreme Court's lead,' " said Block.
"The Supreme Court would not have done this if it didn't think that marriage in all 50 states is the ultimate endgame," the lawyer said. And with the playing field looking more and more favorable, the ACLU is ready to turn up the heat. "We're going fight for every single federal circuit to come out the right way and rule that these bans are unconstitutional," he said.
The fallout is already beginning to reach states that weren't directly affected by the Supreme Court's denial of appeals. On Monday, Missouri Attorney General Chris Koster said he wouldn't appeal a ruling that would make same-sex couples who were married elsewhere eligible for marriage benefits. And on Thursday, West Virginia Attorney General Patrick Morrisey said his state would clear the way for same-sex marriage even though he—like the large majority of West Virginians—does not support gay marriage. Both attorneys general cited the Supreme Court's Monday action in their reasoning.
A Wednesday back-and-forth between the U.S. Court of Appeals for the 9th Circuit and Supreme Court Justice Anthony Kennedy introduced a wrinkle into advocates' hopes of seeing the remaining federal courts topple one by one. After the 9th Circuit Court struck down bans in Idaho and Nevada that day, Idaho officials requested a stay to temporarily block marriages, and Justice Kennedy granted it.
But advocates aren't really worried about the stay. "My bet is that it's nothing more than a temporary speed bump," said Wolfson. "In the grand scheme of things, it didn't mean much of anything." Most likely, Justice Kennedy's emphasis on process drove him to temporarily block the Idaho marriages. "It could be that Justice Kennedy was bothered by the departure from normal procedures," said Block. "Not by the substance of the decision."
As the ACLU takes the legal fight to district and federal courts, Sarah Warbelow, legal director at the Human Rights Campaign, says her organization is using the opportunity to step back and examine the larger picture. "There's this vision out there that when marriage equality comes to a state, LGBT people are suddenly equal in the eyes of the law and that's the end of it," she said. In reality, they're faced with numerous other hurdles.